State v. Stacy

• Decision Date: 27 January 1891
• Citation: 15 S.W. 147,103 Mo. 11
• Parties: STATE v. STACY.
• Court: Missouri Supreme Court

15 S.W. 147

103 Mo. 11

STATE v. STACY.

Supreme Court of Missouri, Second Division.

January 27, 1891.

INDICTMENT — PRINCIPAL AND ACCESSORY.

1. An indictment, which in charging murder sets out the facts of the killing by the accused's co-defendant, without concluding "against the peace and dignity of the state," or formally charging him with the crime, goes on to say that appellant, before the killing, advised his co-defendant to do the act charged, and concludes by formally charging both with the murder against the peace and dignity of the state, contains but one count, and is not open to the objection that the first part, setting out the killing, is a "first count," without any proper conclusion.

2. Under Rev. St. Mo. 1889, § 3944, abolishing all distinction between accessories before the fact and principals, and providing that an accessory before the fact may be indicted and convicted as a principal, an indictment for murder charging that one defendant shot and killed deceased, and that the other advised and incited him to do the act, and concluding by alleging that both killed and murdered deceased, is not objectionable as being contradictory.

Appeal from circuit court, Oregon county; JAMES ORCHARD, Special Judge.

John M. Wood, Atty. Gen., for the State. Harris & Smith, for respondent.

THOMAS, J.

The defendant Stacy was jointly indicted with William Sprague in the circuit court of Oregon county. The indictment is as follows — "State of Missouri, county of Oregon, ss.: In the circuit court of Oregon county, Missouri. February term, A. D. 1890. The grand jurors for the state of Missouri, summoned from the body of the county of Oregon, duly impaneled, sworn, and charged to inquire within and for the body of the county of Oregon, and state of Missouri, upon their oath present and charge that William Sprague, late of the county of Oregon, and state of Missouri, on the 20th day of October, A. D. 1889, at and in the county of Oregon, and state of Missouri, in and upon one D. M. Cornelius, then and there being, feloniously, willfully, deliberately, premeditately, and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a shotgun, then and there loaded with gunpowder and leaden balls, which he, the said William Sprague, in both hands then and there had and held at and against him, the said D. M. Cornelius, then and there feloniously, on purpose, and of his malice aforethought, willfully, deliberately, and premeditately, did shoot off and discharge, and with the shotgun aforesaid, and the leaden balls aforesaid, then and there feloniously, and on purpose, and of his malice aforethought, willfully, deliberately, and premeditately, did shoot and strike him, the said D. M. Cornelius, in and upon the back of the neck of him, the said D. M. Cornelius, giving to him, the said D. M. Cornelius, then and there, with the dangerous and deadly weapon, to-wit, the shotgun aforesaid, and the gunpowder and leaden balls aforesaid, in and upon the back of the neck of him, the said D. M. Cornelius, one mortal wound of the breadth of one inch, and of the depth of three inches, of which mortal wound the said D. M. Cornelius then and there immediately and instantly died. And the grand jurors aforesaid, upon their oath aforesaid, do further present and charge that S. P. Stacy, before the said felony and murder was committed, in the manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, did then and there unlawfully, feloniously, willfully, deliberately, and premeditately, incite, move, procure, aid, counsel, hire, and command him, the said William Sprague, to do and commit the said felony and murder aforesaid, in manner and form aforesaid, and by the means aforesaid, at the time and place aforesaid, to do and commit, and the grand jurors aforesaid, upon their oath aforesaid, do say that William Sprague and S. P. Stacy, him, the said D. M. Cornelius, at the time and place aforesaid, in the manner and by the means aforesaid, feloniously, on purpose, willfully, deliberately, premeditately, and of their malice aforethought, did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." Defendant filed a demurrer to this indictment as follows: "Now at this day comes the defendant S. P. Stacy, and demurs to the indictment in the above-entitled cause, wherein the state of Missouri is plaintiff, and S. P. Stacy is defendant, and wherein he stands charged with murder, as principal in the first degree, for the following reasons, to-wit: (1) Because there is a misjoinder of defendants. (2) Because the indictment in the first count does not conclude against the peace and dignity of the state. (3) Because the name...